John McLean

“ A pre-emption right is property, so regarded by the government and the community at large. In Arkansas, 'all improvements on the public lands of the United States are subject to execution.' Rev. Stat., p. 377.
To call a settler upon the public lands a 'trespasser,' is an outrage upon a policy of the government which has been steadily pursued for more than twenty-five years.
The great point, to which the others are subordinate is, that Goodloe obtained the possession of both parcels of land through Pintard, and by a recognition of his title. ”

“ It must be conceded that the first settler upon this land, the Indian title to it not having been extinguished, could claim under the act of 1814, no pre-emptive right. No laws giving to settlers a right of pre-emption, can be so construed as to embrace Indian lands. Such lands have always been protected from settlement and survey by penal enactments. But, it appears that the Indian claim to this land was relinquished to the United States by treaty, in 1818 ”

“ I beg leave to invite attention to the very able opinion of the Circuit Court, delivered by the district judge, the Hon. Benjamin Johnson. Viewing the whole record, it appears to me that Goodloe has no reasonable ground on which to assail this decree. All the payments made by him have been credited; the expense of procuring the better title, nine hundred dollars, has been abated from the purchase-money; and an abatement, at the rate of forty dollars per acre, has also been made for deficiency in quantity in section six. Surely he cannot conscientiously deny that justice has been done him ”

“ This can hardly be fairly construed as the true meaning of the contract between Goodloe and Rhodes, and is such a compounding of interest as cannot be tolerated by a court of equity.
The amount, however, decreed upon the principles established by the Circuit Court, is for too much by at least one thousand dollars. The number of acres for which Goodloe obtained a pre-emption was 168, and the court settled the quantity in fractional section six, at 11 acres, making 179, instead of 200, which they were estimated to contain. This, at $40 per acre, would make $7,160; adding ten per cent. ”

“ He obtained what he principally desired-obtained the dwelling-house and all the other buildings, all the cleared lands, and all the improvements; he obtained the principal object of his purchase; and, as there was no fraudulent misrepresentation or concealment on the part of Pintard, the case is a proper one for abatement in the amount of the purchase-money to the extent of the small deficiency. This is well settled by authority. ”

“ Craig, 1 Bibb (Ky.) , 395, which in many of its features was analogous to the present, it was laid down as a correct principle, abundantly established by authority, 'that wherever a man by doing a previous act would acquire a right, if, owing to the conduct of the other party, he is prevented from doing it, he acquires the right as completely as if it had been actually done.' See the case, from page 379 to 396, and authorities cited. ”

“ In Winlock v. Hardy, 4 Litt. (Ky.) , 274, it was said, 'that a tenant cannot deny the title of his landlord; nor can a person who enters upon land, in virtue of an executory contract of purchase, deny the right of him under whom he enters; for he is quasi a tenant, holding only in virtue of his vendor's title, and by his permission.
See Turly v. Rodgers, 1 Marsh. (Ky.) , 245; Logan v. Steele's Heirs, 7 Mon. (Ky.) , 104; Tevis's Rep's v. Richardion's Heirs, Id., 659; Fowler v. Cravens, 3 J. J. Marsh. (Ky.) , 430.
Goodloe never placed himself in a situation to contest the title of Pintard. ”

“ On the 24th of February, 1838, the Commissioner of the Land-Office annulled the entry by Tunstall, as assignee of Jane Matthers, 'inasmuch as the tract entered was not the property of the United States at the passage of the act under which the claim was made,' viz., the act of 12th of April, 1814. ”

“ Taylor from Tunstall, prevented Pintard from getting title to the part embraced in the bond, and which Goodloe says has been found to contain only eleven acres. For this, however, he acknowledges himself liable, and expresses his willingness to pay, and says he 'never did refuse to pay.' As to title to said eleven acres of this section, as to his liability to Pintard therefor, Goodloe makes no contest; does not resist performance ”